Madras High Court
Sri Manakula Vinayagar Medical College ... vs Secretary To Government (Health) on 20 September, 2021
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, Sathi Kumar Sukumara Kurup
W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2021
CORAM
THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Orders Reserved On Orders Pronounced On
06.09.2021 20.09.2021
W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
W.P.No.18984 of 2017 :-
Sri Manakula Vinayagar Medical College and Hospital,
Rep., by its Chairman and Managing Trustee,
Kalitheerthalkuppam, Madagadipet,
Puducherry. .. Petitioner
-vs-
1.Secretary to Government (Health),
Department of Health,
Government of Puducherry,
Chief Secretariat (Health) – 605 001.
2.The Secretary, Medical Council of India,
Pocket-14, Sector 8,
Dwaraka, New Delhi – 110 077.
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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3.The Secretary,
Ministry of Health & Family Welfare,
New Delhi.
4.Under Secretary to Government (Health),
Department of Heath,
Government of Puducherry,
Chief Secretariat (Health) – 605 001.
5.The Chairman,
Fee Committee Puducherry,
Unaided Self Financing Medical, Dental Colleges,
No.AA-67, 1st Street,
Near Rountana Nalli Silk House,
Anna Nagar, Chennai-40.
6.V.Vimala .. Respondents
[RR5 & 6 – Impleaded as per orders dated 08.08.2017
and 09.08.2021 in W.M.P.Nos.21974 of 2017 &
10583 of 2021 respectively in W.P.No.18984 of 2017 ]
Prayer :- Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus to call for the
records relating to the order of the 4th respondent dated 19.05.2017 in
proceedings No.C.983/H5/Health/2015-16 and quash the same and
consequently direct the 1st respondent to fix the fee to the students admitted
through CENTAC-Centralized Admission Committee under Government
Quota in the petitioner's college for the academic year 2017-18 to First Year
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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MBBS, equivalent to the tentative fees fixed by the order of the 4th
respondent dated 19.07.2017 in proceedings No.C.983/H5/Health/2017-
2018/238.
[Prayer amended as per order dated 08.08.2017 made in
W.M.P.No.21975 of 2017 in W.P.No.18984 of 2017]
For Petitioner : Mr.Balavijayan
For RR1 & 4 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R2 : Ms.Shubharanjani Ananth
For R3 : Mr.R.Rajesh Vivekananthan
For R5 : Ms.A.V.Bharathi
For R6 : Mr.V.B.R.Menon
*******
W.P.No.19135 of 2017 :-
Sri Venkateswara Dental College,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. .. Petitioner
-vs-
1.The Union Territory of Puducherry,
Rep., by its Secretary to Government,
Health Department, Office of the Chief Secretariat,
Puducherry-605 001.
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
2.The Fee Committee,
In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry.
3.V.Vimala .. Respondents
[RR2 & 3 – Impleaded as per orders dated 09.08.2017 and
16.03.2021 in W.M.P.Nos.22238 of 2017 &
11145 of 2018 respectively in W.P.No.19135 of 2017]
Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorari to call for the records on the files of the
respondents in its proceedings No.C.983/H5/Health/2015-16 dated
19.05.2017 and quash the same as arbitrary insofar as it fixes fee without
considering the factors prescribed by the Hon'ble Supreme Court in Islamic
Institution, P.A.Inamdar and Modern Dental College.
For Petitioner : Mr.Abishek Jenasenan
For RR1 & 2 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R3 : Mr.V.B.R.Menon
*******
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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W.P.No.19136 of 2017 :-
Sri Venkateswara Dental College,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. .. Petitioner
-vs-
1.The Union Territory of Puducherry,
Rep., by its Secretary to Government,
Health Department,
Office of the Chief Secretariat,
Puducherry-605 001.
2.The Fee Committee,
In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry. .. Respondents
[R2 – Impleaded as per order dated 09.08.2017 in
W.M.P.No.22239 of 2017 in W.P.No.19136 of 2017]
Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorari to call for the records on the files of the
respondents in its proceedings No.C.983/H5/Health/2017-18-238 dated
19.05.2017 and quash the same as arbitrary insofar as it fixes temporary fee
stating that the order in No.C.983/H5/Health/2015-16 dated 19.05.2017 did
not make any difference between Management Quota and Government
Quota students, thus restricting it to Management Quota student alone.
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
For Petitioner : Mr.Abishek Jenasenan
For RR1 & 2 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
******
W.P.No.19137 of 2017 :-
Sri Venkateswara Medical College
Hospital and Research Centre,
Rep., by its Chairman, B.Ramachandhiran,
No.13-A, Pondy Villupuram Main Road,
Ariyur, Puducherry-605 102. .. Petitioner
-vs-
1.The Union Territory of Puducherry,
Rep., by its Secretary to Government,
Health Department, Office of the Chief Secretariat,
Puducherry-605 001.
2.The Fee Committee,
In respect of Self-Financing Medical,
Dental and Nursing Colleges,
Rep., by its Secretary, Puducherry.
3.V.Vimala .. Respondents
[RR2 & 3 – Impleaded as per orders dated 09.08.2017 and
16.03.2021 in W.M.P.Nos.22240 of 2017 &
19125 of 2019 respectively in W.P.No.19137 of 2017]
Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorari to call for the records on the files of the
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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respondents in its proceedings No.C.983/H5/Health/2015-16 dated
19.05.2017 and quash the same as arbitrary insofar as it fixes fee without
considering the factors prescribed by the Hon'ble Supreme Court in Islamic
Institution, P.A.Inamdar and Modern Dental College.
For Petitioner : Mr.L.Swaminathan &
Mr.Devashish Bharaka
for Ms.Q.Rubina
For RR1 & 2 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R3 : Mr.V.B.R.Menon
*******
W.P.No.24161 of 2018 :-
Pondicherry Medical Colleges Students
and Parents Association,
Rep., by its Secretary, No.158, Mission Street,
Puducherry-605 001. .. Petitioner
-vs-
1.The Chief Secretary to Govt. of Puducherry,
Secretariat, Goubert Avenue,
Puducherry-605 001.
2.The Deputy Secretary to Government of Puducherry,
Health and Family Welfare Services Department,
Secretariat, Beach Road, White Town, Puducherry-605 001.
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
3.The Director,
Department of Health and Family Welfare
Services (DHFWS),
Victor Samuel Street, Puducherry-605 001.
4.Puducherry Fee Committee,
Rep., by its Chairman,
No.7 (NCB), Greenways Road,
Chennai-600 028.
5.The Registrar,
Pondicherry University,
R.V.Nagar, Kalapet,
Puducherry-605 014.
6.Sri Manakula Vinayagar Medical College and Hospital,
Rep., by its Chairman and Managing Director,
M.Dhanasekaran, Kalitheerthalkuppam,
Madagadipet, Puducherry-605 107.
7.Sri Venkateswara Medical College
Hospital and Research Centre,
Rep., by its Chairman, B.Ramachandhiran,
Main Road, Ariyur, Puducherry-605 102.
[RR6 & 7 – Impleaded as per order dated 04.07.2019 in
W.M.P.Nos.17795 of 2019 & 17815 of 2019 in W.P.No.24161 of 2018 ]
8.The Registrar,
Pondicherry Institute of Medical Sciences,
Kalathumettupathai, Ganapathichettikulam,
Village No.20, Kalapet, Puducherry-605 104. .. Respondents
[R8 – Impleaded as per order dated 16.12.2020 in
W.M.P.No.23270 of 2020 in W.P.No.24161 of 2018]
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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Prayer :- Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus to call for the
records pertaining to the Fee Order dated 03.07.2018 issued by the
Government of Puducherry in G.O.Ms.No.24 prescribing separate Annual
Fees for MBBS Students admitted under Management Quota in the 6th, 7th
and 8th Respondent Medical Colleges and quash the same and consequently
to direct the 6th, 7th and 8th Respondents to collect the Annual Fees from the
MBBS Students admitted under Management Quota also as per the common
Fee Order dated 19.05.2017 issued by the Puducherry Government and to
refund the excess Annual Fee amounts already collected from them.
[Prayer amended as per order dated 16.08.2021 in
W.M.P.No.310 of 2021 in W.P.No.24161 of 2018]
For Petitioner : Mr.V.B.R.Menon
For RR1 to 4 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R5 : Ms.A.V.Bharathi
For R6 : Mr.B.Balavijayan
For R7 : Mr.L.Swaminathan &
Mr.Devashish Bharak
assisted by Ms.Q.Rubina
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
For R8 : Mr.AR.L.Sundaresan,
Senior Counsel
assisted by Mr.Abishek Jenasenan
******
W.P.No.19466 of 2020 :-
1.Leen.J
2.Prasanth.B
3.Sriram.J
4.John Albert.S
5.Preethi Prabhakar
6.Shenaz Banu.B
7.Shirly Pricilla.J
8.Kevin Abraham.A.
9.Robert Melvin.D.Sami
10.Govardhana.S.
11.Ajinkya Dhumale
12.Praneetha.V.R.
13.Saranya.J
14.Joslin Joe.A
15.Aravindraj.D
16.Shabeera.M
17.Muthubarathy.S.R.
18.Dhana Nadeeshwaran.R.S.
19.Sneha.T.
20.Angel Grace Marie
21.Mirthulla Julie Anne
22.Mohankumar.R.
23.Yashwanth.K
24.Muruganayani.G
25.Harishelvan.P
26.Samuel.M
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
27.Sweatha.K
28.Ashaya.E
29.Ramkumar.P
30.Thanushree.A
31.Rishi Kesavan.R
32.Shanmugapriya.A
33.Leander Pradeep
34.Adhithya.R
35.Milind.L
36.Jayakrishna.M
37.Ragothaman.T
38.Krishna Chandran Alias Abou.R
-vs-
1.The Secretary to Government of Puducherry,
Health and Family Welfare Services Department,
Secretariat, Beach Road, White Town,
Puducherry-605 001.
2.The Registrar,
Pondicherry University,
R.V.Nagar, Kalapet,
Puducherry-605 014.
3.The Chairperson,
National Medical Commission,
Pocket-14, Sector-8,
Dwarka Phase-I, New Delhi-110 077.
4.Pondicherry Institute of Medical Sciences,
Rep., by its Chairman,
Kalathumettupathai, Ganapathichettikulam,
Village No.20, Kalapet, Puducherry-605 104.
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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5.Sri Venkateshwara Medical College Hospital
and Research Centre, Rep., by its Chairman,
Main Road, Ariyur, Puducherry-605 102. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of Writ of Certiorarified Mandamus to call for the records of
the Fee Order issued by the Government of Puducherry in G.O.Ms.No.24
dated 03.07.2018 prescribing separate Annual Fees for MBBS Students
admitted under Management Quota during the academic year 2017-18 to the
Private Affiliated Medical Colleges situated in the Union Territory of
Puducherry and to quash the same in respect of the petitioners only and
consequently to direct the 4th and 5th respondents to collect from the
petitioners Annual Fees for the entire 5-year MBBS Course only as per the
common Fee Order dated 19.05.2017 issued by the Pondicherry government
and to refund the excess Annual fee amounts already collected from them.
For Petitioners : Mr.V.B.R.Menon
For R1 : Mr.C.T.Ramesh,
Addl. Govt. Pleader (Pondicherry)
For R2 : Ms.A.V.Bharathi
For R3 : Ms.Shubharanjani Ananth
For R4 : Mr.AR.L.Sundaresan,
Senior Counsel
assisted by Mr.Abishek Jenasenan
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
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For R5 : Mr.L.Swaminathan &
Mr.Devashish Bharaka
for Ms.Q.Rubina
******
COMMON ORDER
T.S.Sivagnanam, J.
All these writ petitions pertain to the fee structure for the MBBS and BDS Courses offered by the unaided Medical and Dental Colleges in the Union Territory of Puducherry.
2.The writ petitions can be broadly grouped into two categories, those filed by the Medical Colleges/Institutions and those filed on behalf of and by the students.
3.The prayer sought for in the various writ petitions are as hereunder:-
(i) W.P.No.18984 of 2017, filed by Sri Manakula Vinayagar Medical College and Hospital, is for issuance of Writ of Certiorarified Mandamus to _____________ Page 13 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 quash the order passed by the Government of Puducherry dated 19.05.2017 by which, the fee structure for Medical, Dental and Nursing Colleges was fixed. Insofar as the petitioner-college is concerned, the fee structure was fixed for the academic years 2016-17, 2017-18 and 2018-19. The petitioner seeks for a consequential direction upon the Government of Puducherry to fix the fee to the students admitting through the Centralized Admission Committee (CENTAC) under the Government Quota in their college for the academic year 2017-18 to the I-Year MBBS Course equivalent to the tentative fees fixed by the Government of Pondicherry, vide order dated 19.07.2017;
(ii) In W.P.No.19135 of 2017, the petitioner, Sri Venkateswara Dental College, prays for issuance of Writ of Certiorari to quash the Government Order dated 19.05.2017, fixing the fee for the petitioner-college for the academic years 2017-18, 2018-19 and 2019-20, insofar as it fixes the fee without considering the factors prescribed by the Hon'ble Supreme Court in various decisions;
_____________ Page 14 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020
(iii) W.P.No.19136 of 2017 has been filed by Sri Venkateswara Dental College for issuance of Writ of Certiorari to quash the order passed by the Government of Pondicherry dated 19.07.2017, insofar as it fixes temporary fee for the academic year 2017-18 stating that the fee fixation order dated 19.05.2017 did not make any difference between the students admitted under the Management Quota and those students admitted under the Government Quota, thus restricting it to the Management Quota students alone;
(iv) W.P.No.19137 of 2017 has been filed by Sri Venkateswara Medical College Hospital and Research Centre praying for issuance of Writ of Certiorari to quash the order passed by the Government of Pondicherry dated 19.05.2017, with regard to the fee fixed for the academic years 2015- 16, 2016-17 and 2017-18 as being arbitrary, as it has been fixed without considering the factors prescribed in the various decisions of the Hon'ble Supreme Court;
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(v) W.P.No.24161 of 2018 has been filed by the Pondicherry Medical College Students and Parents Association (for brevity “the Association”) for issuance of Writ of Certiorarified Mandamus to quash the order passed by the Government of Pondicherry in G.O.Ms.No.24 dated 03.07.2018, prescribing separate annual fee for MBBS students admitted under Management Quota in Sri Manakula Vinayagar Medical College and Hospital, Sri Venkateswara Medical College Hospital and Pondicherry Institute of Medical Sciences and for a consequential direction to direct those three institutions, who were impleaded as the 6th, 7th and 8th respondents in the writ petition to collect annual fee from the MBBS students admitted under the Management Quota as per the fee fixed in the order dated 19.05.2017, passed by the Government of Pondicherry and to refund the excess annual fee already collected from the students; and
(vi) W.P.No.19466 of 2020 has been filed by 38 petitioners, who were the students admitted to the MBBS course during the academic year _____________ Page 16 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 2017-18 in the Pondicherry Institute of Medical Sciences and Sri Venkateswara Medical College Hospital and Research Centre, respondents 4 and 5 in the writ petition, praying for issuance for Writ of Certiorarified Mandamus to quash the order passed by the Government of Pondicherry in G.O.Ms.No.24 dated 03.07.2018, prescribing separate annual fee for MBBS students admitted under Management Quota during the academic year 2017- 18 in the 4th and 5th respondent-Colleges and to direct them to collect annual fee from the writ petitioners for the entire 5-year MBBS course as per the common fee fixed by the Government of Pondicherry in the order dated 19.05.2017, and refund the excess annual fee collected from hem.
4.The learned counsel appearing for the writ petitioners as well as the respondents submitted that in W.P.No.24161 of 2018, filed by the Association of the Institution, all the Governmental Authorities (except National Medical Commission) and the Puducherry University are parties and therefore, the papers filed in the said writ petition by both sides can be taken up and they would make their submissions accordingly. _____________ Page 17 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020
5.We have heard Mr.Abishek Jenasenan – learned counsel for Sri Venkateswara Dental College; Mr.P.Balavijayan – learned counsel for Sri Manakula Vinayagar Medical College and Hospital; Mr.AR.L.Sundaresan – learned Senior Counsel, assisted by Mr.Abishek Jenasenan – learned counsel for the Pondicherry Institute of Medical Sciences; Mr.L.Swaminathan, learned counsel and Mr.Devashish Bahraka, learned counsel for Ms.Q.Rubina – learned counsel for Sri Venkateswara Medical College Hospital and Research Centre; Mr.C.T.Ramesh – learned Additional Government Pleader (Pondicherry) for the Government of Pondicherry; Ms.Shubharanjani Ananth – learned counsel for the National Medical Commission; Mr.Rajesh Vivekanandan – learned counsel for the Union of India; Ms.A.V.Bharathi – learned counsel for the Puducherry Fee Committee and the Puducherry University; and Mr.V.B.R.Menon – learned counsel for the Association and students and carefully perused the materials placed on record.
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6.We first take into consideration the legal position as regards the regulation of the fee structure and admission process in private Medical and Dental Colleges. The correctness of the decision of the Hon'ble Supreme Court in Unni Krishnan J.P. vs. State of Andhra Pradesh [(1993) 1 SCC 645 (SC)] came up for consideration before the Hon'ble Supreme Court in T.M.A.Pai Foundation vs. State of Karnataka [(2002) 8 SCC 481 (SC)]. It was pointed out that in the case of Mohini Jain (Miss) vs. State of Karnataka and Ors., [(1992) 3 SCC 666], the challenge was to a notification of June, 1989, which provided for a fee structure, whereby for Government seats, the tuition fee was Rs.2,000/- per annum and for students from Karnataka, the fee was Rs.25,000/- per annum, while the fee for Indian students from outside Karnataka, under the payment category was Rs.60,000/- per annum. It was contended that charging of such a discriminated and high fee violated constitutional guarantees and rights and this challenge was sustained and it was held that there was fundamental right to education in every citizen and the State was duty bound to provide _____________ Page 19 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the education and that the private institutions that discharge the State's duties were equally bound not to charge a higher fee than the Government institutions. The Court held that any prescription of fee, excess of what was payable in Government colleges, was a capitation fee and would, therefore, be illegal. The correctness of the said decision was challenged in Unni Krishnan contending that if the ratio in Mohini Jain (Miss) was applied, the educational institutions would have to be closed down, as they would be wholly unviable without appropriate funds, by way of tuition fees, from their students.
7.In Unni Krishnan, the Hon'ble Supreme Court considered the conditions and regulations, which the State could impose in running of a private unaided/aided and recognized affiliated educational institutions running professional courses such as Medical Course, Engineering, etc. Further, to consider the extent to which the fee could be charged by such an institution and the manner in which admission could be granted, was also considered. It was held that private unaided recognized/affiliated educational institutions running of professional courses were entitled to _____________ Page 20 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 charge fee higher than that charged by the Government institutions for similar courses, but such fee could not exceed the maximum limit fixed by the State. It was held that commercialisation of education was not permissible. With regard to the private aided/recognised/affiliated educational institutions, the Court held that the power of Government to frame rules and regulations in the matter of admission and fee as well as matters in such as regulation of conditions of fee of teachers and staff. It was further held that it was obligatory upon the authority granting recognition to an affiliated institution upon such conditions as were appropriate to ensure not only an education of requisite standard, but also fairness and equal treatment in the matter of admission of students.
8.Then the Court proceeded to formulate a scheme (a) that a professional college should be established and/or administered only by a Society registered under the Societies Registration Act, 1860 or the corresponding Act of a State or by a Public Trust registered under the Trusts Act or under the Wakfs Act and that no individual, firm, company or other _____________ Page 21 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 body of individuals would be permitted to establish and/or administer a professional college; (b) that 50% of the seats in every professional college should be filled by the nominees of the Government or university, selected on the basis of merit, determined by a common entrance examination, and these seats were to be referred as “free seats” and the remaining 50% seats (“payment seats”) should be filled by those candidates, who pay the fee prescribed therefor and the allotment of students against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of “free seats”; (c) that there should not be no quota reserved for the management or for any family, caste or community, which may have established such a college; (d) that it should be open to the professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University; (e) that the fee chargeable in each professional college should be subject to such a ceiling as may be prescribed by an appropriate authority or by a competent Court;
(f) that every State Government should constitute a Committee to fix the ceiling on the fees charged by a professional college and this Committee _____________ Page 22 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 after hearing the professional colleges, fix the fee once every three years or at such longer intervals, as it may think appropriate; and (g) that it would be appropriate for the University Grants Commission to frame regulations under its Act regulating the fees that the affiliated colleges operating on a no-grant-in-aid basis were entitled to charge. The minority education institution as well as the Government contended that the scheme framed in Unni Krishnan was not warranted.
9.It was submitted that the cost incurred on educating a student in unaided professional college was more than the total fee, which was realised on the basis of the formula fixed in the scheme and this has resulted in Revenue shortfalls. It was contended that 50% of the seats are to be given on the basis of merit, determined by conducting a common entrance examination and the rate of fee would be minimal. So far as the “payment seats” is concerned, it represents the balance number, which would cross- subsidize the “free seats”. It was contended that the scheme framed in Unni Krishnan, helped the privileged from richer urban families and it resulted in _____________ Page 23 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 economic losses for the educational institutions concerned and made them financially unviable. Testing the correctness of these submissions and the other submissions, the Hon'ble Supreme Court in T.M.A.Pai Foundation, held that the decision in Unni Krishnan, insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequential direction given to the UGC, AICTE, Medical Council of India, Central and State Government, etc., were overruled.
10.In T.M.A.Pai Foundation, the Hon'ble Supreme Court pointed out that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money and it has to be left to the institution to determine the scale of fee that it can charge from the students. Further, it was pointed out that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education while forbidding the charging of capitation fee and profiteering by the institution. It was _____________ Page 24 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 reiterated that educational institution should not be established for making of profit, however, a reasonable revenue surplus would be permissible.
11.In Islamic Academy of Education vs. State of Karnataka [(2003) 6 SCC 697], four questions were framed for consideration of which, Question No.1 would be of relevance to us namely, whether the educational institutions are entitled to fix their own fee structure. While answering the said question, it was held that there can be no fixing of a rigid fee structure by the Government, each Institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus and it must be used for the betterment and growth of that educational institution. Each Institute will be entitled to have its own fee structure and the fee structure for each Institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, the salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution, etc. There can be no _____________ Page 25 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 profiteering and capitation fees cannot be charged. The surplus/profit that can be generated must be only for the benefit/use of that educational institution and cannot be diverted for any other use or purpose. The Court directed that in order to give effect to the judgment in T.M.A.Pai Foundation, the respective State Governments/concerned authorities shall set up, in each State, a Committee headed by a retired High Court Judge, who shall be nominated by the Chief Justice of that State. The other member, shall be nominated by the Judge, should be a Chartered Accountant of repute. Apart from, a representative of the Medical Council of India or AICTE, depending on the type of institution, shall also be a member and the Secretary of the State Government in which all Medical Education or Technical education shall be a member and Secretary of the Committee. The Committee so constituted, was free to nominate/co-opt another independent person of repute so that total number of members of the Committee shall not exceed five. It was further directed that each educational Institute must place before the said Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed _____________ Page 26 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 fee structure, all relevant documents and books of accounts must also be produced before the Committee. The Committee shall decide whether the fees proposed by that Institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee, which can be charged by the Institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period, the Institute would be at liberty to apply for revision. It was further held that once fees are fixed by the Committee, the Institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. The Government was directed to consider framing appropriate regulations, if not already, framed, whereunder, if it is found that an institution is charging capitation fee or profiteering, that institution can be appropriately penalized and also face the prospect of losing its recognition/affiliation.
12.In P.A.Inamdar vs. State of Maharashtra [(2005) 6 SCC 537], four questions were taken up for decision pursuant to two orders of _____________ Page 27 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 reference, of which, Question Nos.1, 3 and 4 are relevant, viz.,
(i) to what extent, the State can regulate the admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?
(ii) …..........
(iii) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions? and
(iv) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy?
13.While answering Question No.(i), the allocation of fee for Non Resident Indian (NRI) was considered and it was held that a limited reservation of seats, not exceeding 15%, may be made available to NRIs _____________ Page 28 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 depending on the discretion of the Management subject to two conditions, viz., such seats should be utilized bona fide by the NRIs only and for their children or wards and secondly, within the said quota, merit should not be given a complete go-by. Further, the amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well can defined criteria, the educational institution may admit on subsidized payment of their fee.
14.With regard to Question No.(iii), it was held that to set up a reasonable fee structure is also a component of “the right to establish and administer an institution” within the meaning of Article 30(1) of the Constitution, as per the law declared in T.M.A.Pai Foundation. It was further held that every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly. Thus, the question was answered by upholding that every institution is free to devise its own fee structure, but _____________ Page 29 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the same can be regulated in the interest of preventing profiteering and no capitation fee can be charged.
15.While answering Question No.(iv) above, it was held that the committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy is permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms in their institutions. Thus, the Committee constituted for fixation of the fee in the Islamic Academy stood approved.
16.With regard to the functioning of the Committee, it was pointed out that the Committee should be more sensitive and act rationally and reasonably with due regard for realities. They should refrain from generalizing fee structures and where needed should go into accounts, schemes, plans and budgets of an individual institution for the purpose of _____________ Page 30 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 finding out what would be an ideal and reasonable fee structure for that institution.
17.Bearing in mind the above legal position, we now proceed to consider the controversy raised before us and arrive at a decision.
18.The Government of Pondicherry framed the Pondicherry Private Professional Educational Institutions (Provisions of Reservation, Admission of Students and Fixation of Fee) Regulations, 2006 (“Regulations” for brevity). The said Regulations was to apply to all private professional institutions imparting professional course of study functioning within the geographical limits of Union Territory of Puducherry. Part 1 of the Regulations deals with “fees”, which is as hereunder:-
3(a) Fee Committee”, having regards to the following factors.–
(i) the location of the professional Institutions;
(ii) the nature of the professional course;
(iii) the cost of land and building;
(iv) the available infrastructure;
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(v) the expenditure on administration and maintenance;
(vi) a reasonable surplus required for growth and development of the professional institution;
(vii) the revenues foregone on account of waiver of fee, if any, in respect of students belonging to the scheduled castes, scheduled tribes, wherever applicable to the socially and educationally backward classes and other economically weaker sections of the society, to such extent as shall be notified by the Government from time to time; and
(viii) any other relevant factor, shall determine the fee or fees to be charged by a Private Professional Educational Institution.
(b) The Private Professional Educational
Institutions/Teacher Training Institutions, shall
propose the structure of fee to be charged from the students admitted to the institutions to the Fee Committee constituted hereunder. There shall be no profiteering and no capitation fee shall be charged.
4.The Fee Committee consisting of the following members shall be constituted for approval of the fee _____________ Page 32 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 structure in Private Professional Educational Institutions and Teacher Training Institutions:-
(a) A Retired Judge of High Court, ... Chairman
Madras (to be nominated by the
Chief Justice, High Court Judicature,
Madras
(b) Chartered Accountant (to be ... Members
nominated by the Chairman)
(c) A representative of All India ... Member
Council in respect of Health
Medical Education
(d) A representative of All India Council ... Member
for Technical Education (in respect
of Engineering Education)
(e) A representative of National Council ... Member
for Teacher Education (in respect of
B.Ed. and D.T.Ed.)
(f) Secretary (Health), Pondicherry and ... Member
Secretary for Medical Educationa
(g) Secretary (Education), Pondicherry ... Member
and for Education for Engineering,
B.Ed., and D.T.Ed and other Courses
_____________
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
5.Each Private Professional Educational
Institutions/Teacher Training Institutions shall submit to the Chairman of the Fee Committee well in advance of the academic year, its proposed fee structure. Along with proposed fee structure attested Xerox copies of the relevant documents and books of accounts must be produced for scrutiny. Original of the same must be produced before the Committee for scrutiny.
6.Managements, having more than one college, shall be competent to propose different fee structure for different colleges.
7.In the same Private Professional Educational Institution, different fee structure may be proposed for different courses.
8.The Fee committee shall consider the proposals and be at liberty to approve the fee structure or to propose some other fee which can be charged by the Private Professional Educational Institutions/Teacher Training Institutions. The Fee Committee shall give the institution an opportunity of being heard before fixing any fee or fees. The fees fixed by the Committee shall be binding on the above Private Professional Educational Institutions and _____________ Page 34 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Teacher Training Institutions for a period of three years, at the end of which period the Institutions would be at liberty to apply for revision.
9.The approved fee structure shall be communicated to the Private Professional Educational Institutions/Teacher Training Institutions to the Convenor of Centralised Admission Committee and to the University concerned and shall also be published in such manner as considered appropriate by the Committee.
10.After fixation of fee structure by the Committee, the abovementioned Private Professional Educational Institutions and Teacher Training Institutions shall not charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g., donations, the same shall amount to charging of capitation fee. If any Private Professional Educational Institution/Teacher Training Institution is found charging capitation fees or profiteering, it is recognition/affiliation shall be withdrawn forthwith and be appropriately penalised.” _____________ Page 35 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020
19.It is not disputed that the Fee Committee in terms of Regulation 3 above, has been functioning in the Union Territory of Pondicherry since 2006 and fee has been fixed for professional institutions up to 2014-15 and for the academic years 2015-16 and 2016-17, the Committee did not fix any fee and there appears to be some delay in constitution of the Committee, submitting the details etc.
20.The Fee Committee constituted in terms of Regulation 3, by G.O.Ms.No.41 dated 29.03.2004, was asked to continue to function as per G.O.Ms.No.2 dated 25.11.2011 in compliance with the directions issued by the Hon'ble Supreme Court in Islamic Academy of Education and later clarified in P.A.Inamdar. The Committee considered the fees to be fixed for the Medical and Dental Colleges for the academic years 2015-16, 2016- 17 and 2017-18. The Committee heard the representatives of the institutions/colleges, who are before us. The colleges were also visited by the Fee Committee to collect direct evidence about the fee structure than what was fixed for the academic years 2012-13, 2013-14 and 2014-15 and _____________ Page 36 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the Committee found that the increase sought for to be steep and the colleges were not able to substantiate the request with adequate data. Therefore, the colleges were directed to furnish the breakup of the total current fee collected from each student and also directed the college to supply detailed information with projections for the three years to substantiate the enhancement sought for. The Committee took note of the proposals, which were placed before it, the income calculation chart, the anticipated projection and details of the fees fixed in the other States. The Committee heard the views of the parents, students, NGOs and other interested persons. The feedback received was that the existing fee itself is exorbitant and the colleges are collecting capitation fee, which is prohibited and they are collecting the fee in advance for the entire course and collecting one year fee for six month period. The Committee analysed the materials placed before it and the Chartered Accountant member analysed the projections given by the Institutions, taking note of the cost inflation, infrastructure development, the consumer cost inflation index and the requirements to be made by the institutions by developing their _____________ Page 37 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 infrastructure and more importantly, the interest and welfare of the student community, which was considered to be paramount. After considering all the relevant informations as mentioned, the Committee came to the conclusion that an increase of 32% is permissible on the fee fixed by the earlier Committee for the previous academic years. Accordingly, the Committee proceeded to fix the fee for the three Medical Colleges before us and the Dental Colleges. Other directions were issued to the institution not to collect any kind of fee under any guise except the fee fixed by the Committee. The Government of Pondicherry by order dated 19.05.2017, notified the permissible fee fixed by the Committee. Subsequently, the Committee met on 12.07.2017 to discuss regarding fixation of fee for the Under Graduate Medical/Dental Colleges for the academic year 2017-18 for the Management Quota only. In the proceedings of the Committee, it has been recorded that the Fee Committee by its proceedings dated 23.03.2017, fixed the fee for the Undergraduate Courses in MBBS/BDS/B.Sc., (Nursing) in Private Self-financing Medical/Dental and Para Medical Nursing Colleges of the Union Territory of Pondicherry. The fee as fixed by the _____________ Page 38 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Committee in its proceedings dated 23.03.2017, does not make any difference between the students who were admitted under the Management Quota and students admitted under the Government Quota as before.
21.It was recorded that the Government of Pondicherry by letter dated 23.06.2017, informed the Committee that so far the fee for the students admitted under the Management Quota for the UG Medical/Dental Courses in Private Self financing Medical/Dental Colleges in the Union Territory of Pondicherry was not fixed. Therefore, the request made by the Government of Pondicherry in their letter dated 23.06.2017, for fixing the fees for the students admitted in the Management Quota was taken up for consideration. The request made in the letter dated 23.06.2017 was that the Fee Committee took note that two of the Private Medical Colleges submitted their proposals with a request to revise the earlier fee fixed by the Committee for the UG Courses on 23.03.2017. The same request was reiterated by the Government of Pondicherry in their letter dated 29.06.2017. Accordingly, the Fee Committee took up the matter for discussion and pointed out that _____________ Page 39 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 insofar as the fee fixed by the Committee on 23.03.2017 is concerned, it has become final and the fee has been fixed, after considering all the relevant details and particulars furnished by the Government and the Management of the Colleges and after taking note of the views of the parents and the students, it was decided not to revoke/review/modify/change/alter the fee already fixed by the Committee on 23.03.2017. Thereafter, the Committee proceeded to consider the request of the Government of Pondicherry and the Managements of the Self-financing Colleges for fixing the fee for the students to be admitted under the Management Quota from the academic year 2017-18 onwards.
22.The representatives of the three Medical Colleges attended the meeting, who sought for enhancement of the fee fixed by the Committee on 23.03.2017 by reviewing the same, but they were clearly informed by the Committee that there can be no review/modification of the fee fixed by the Committee on 23.03.2017. As far as the students to be admitted under the Management Quota from the academic year 2017-18 is concerned, the _____________ Page 40 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Committee found the details, particulars and data furnished by the Management of the Colleges were inadequate and all the three Medical Colleges agreed to submit particulars/details/data, which were not readily available with them at that point of time. Therefore, the Committee took a decision to tentatively fix the fee with regard to the Management Quota, which was accepted by all the three Medical Colleges. Insofar as the Dental Colleges, which had also made similar request for increase in the fee and follow the pattern adopted in the State of Tamil Nadu, the same was considered, the members of the public and parents of the wards were heard, who stated that there should not be different fee for students admitted under Government Quota and under Management Quota. The teaching faculty of the Self-financing Professional Colleges requested the fee should be hiked or else, they would lose their employment. The Committee considered the request and also took note of the report of the Tamil Nadu State Fee Committee and found that even in the State of Tamil Nadu, no separate fee was fixed for Management Quota and Government Quota till the academic year 2016-17 and only from the academic year 2017-18, the different fee _____________ Page 41 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 was fixed for the Government Quota and the Management Quota. The Committee noted the views expressed by the Expert Member (Chartered Accountant) that the fee pattern followed in Tamil Nadu is first fixing the fee for the Government Quota and thereafter, increasing the same three times for the Management Quota and by six times for the NRI Quota. Therefore, the Committee decided to adopt the said pattern temporarily, since the admissions were to be done and accordingly, the tentative fee for the academic year 2017-18 for the Management Quota and NRI Quota was fixed. It was made clear that the students, who were already admitted before the academic year 2017-18 shall be governed by the fee structure fixed by the Committee in its order dated 23.03.2017. So far as the fee fixed for the Management Quota for the academic year 2017-18 is concerned, it was made clear that it was only a tentative fixation and the final fee would be fixed after evaluating the necessary particulars, proposals, data, information etc., from the colleges. To the said effect, the Management of the Colleges also gave a Letter of Undertaking. In addition to the fee fixed, the educational institutions were permitted to collect an _____________ Page 42 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 amount of Rs.50,000/- per student towards development fees. The students were directed to be covered under the Students Group Insurance Scheme.
23.Pursuant to the decision of the Fee Committee dated 12.07.2017, the Government of Pondicherry notified the tentative fee for the academic year 2017-18 for the Management Quota and the NRI Quota. The Fee Committee was re-constituted vide G.O.Ms.No.13 dated 10.08.2018. The Government of Pondicherry by letter dated 23.06.2017 requested the re- constituted Fee Committee to fix the fee structure for UG Medical and Dental Courses for the students to be selected under the Management Quota. The Committee took note of the tentative fixation of fee done by proceedings dated 12.07.2017, and took note of the undertaking given by the students stating that the earlier fee was only a tentative fee. The Committee took note of the request made by the three colleges, their audited statement of accounts, the cost incurred for each student for imparting education, took note of the inspection reports prepared by the previous Committee and after comprehensive inspection of the previous Committee _____________ Page 43 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 fixed the fee at Rs.12 Lakhs per annum for Management Quota seats and Rs.20 Lakhs per annum for NRI Quota for all the three Medical Colleges for the academic years 2017-18, 2018-19 and 2019-20. The colleges were also permitted to collect Rs.50,000/- per student towards development charges. The Committee pointed out that insofar as students, who have already admitted with the annual fee of Rs.12 Lakhs/15.50 Lakhs for the academic year 2017-18, further a sum of Rs.3.5 Lakhs would be payable by those students at the rate of Rs.50,000/- per semester commencing from III Semester. This was to enable the students to pay the difference in equal instalments in order to ease their burden. The Government by G.O.Ms.No.24 dated 03.07.2018, notified the fee fixed by the Committee for the Management Quota seats and NRI Quota seats for the academic years 2017-18, 2018-19 and 2019-20.
24.The students, who were admitted for the MBBS Course during the academic year 2016-17, filed writ petitions in W.P.Nos.23732 of 2017, 9472, 10550, 13039 and 16924 of 2018 contending that the demand of fees _____________ Page 44 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 over and above the fee fixed by the Committee vide proceedings dated 23.03.2017, as notified by the Government on 19.05.2017, cannot be collected. By common order dated 18.07.2019, it was held that the fee fixed by the Committee in its proceedings dated 23.03.2017, shall be applicable for the academic year 2016-17 and the excess fee paid by the students shall be refunded. Review applications were filed by the Colleges in Review Application Nos.194 to 198 of 2019 and 8 of 2020 and they were dismissed by common order dated 28.04.2021. The Colleges filed Special Leave Petitions before the Hon'ble Supreme Court challenging the order of the Division Bench dated 18.07.2019 and the order in the Review Applications dated 28.04.2021, and the matter is pending.
25.As mentioned above, the colleges are before us challenging the Government Order dated 19.05.2017, fixing the fees in terms of the proceedings of the Committee dated 23.03.2017 and the tentative fee fixed by proceedings dated 19.07.2017. The Association and the students are aggrieved by the fee fixation order in G.O.Ms.No.24 fixing differential fee _____________ Page 45 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 for students admitted under the Management Quota and NRI Quota and to direct the Management to collect the fee in terms of the Government Order dated 19.05.2017, and refund the excess amount.
26.The learned counsel appearing for the Association and the students submitted that the fee, which has been notified by the Government in G.O.Ms.No.24 is more than the fee notified by order dated 19.05.2017. It is submitted that the fee was fixed for the academic year 2016-17 ranging from Rs.2.99 Lakhs to Rs.3.99 Lakhs and the proceedings of the Fee Committee dated 23.03.2017 does not make any distinction between the State Quota and Management Quota. Subsequently, by order dated 19.07.2017, a provisional fee of Rs.12 Lakhs was fixed from the academic year 2017-08. Thereafter, the final fee was fixed by G.O.Ms.No.24 and the students, who were previously admitted under the Management Quota were directed to pay the differential fee. It is submitted that the annual fees fixed for the Management Quota seats have been preferred in an ad-hoc and arbitrary manner without taking into account the variations and the actual _____________ Page 46 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 cost/expenditure incurred by the three Medical Colleges. The fixation done in G.O.Ms.No.24 is in violation of the directions issued by the Hon'ble Supreme Court of India, which had directed to assess the fee structure for each institution separately and there cannot be a uniform fee structure. Before the Fee Committee took a decision vide proceedings dated 23.03.2017, all the stakeholders including the parents, students, NGOs and other interested were heard and in addition, the institutions were also heard and the facilities and the infrastructure was examined after which, the recommendation was made on 23.03.2017, which fructified in Government Order dated 19.05.2017, which does not state that it is applicable only to the Government Quota seats. However, when the tentative fees was fixed by proceedings dated 12.07.2017, in the recommendation dated 19.06.2018, the exercise undertaken by the Fee Committee before passing the proceedings dated 23.03.2017 was not done and the fee has been arbitrarily fixed without hearing the stakeholders such as parents, students, NGOs etc. The denial of opportunity to the stakeholders to participate in the deliberation of the Fee Committee before the above decisions were taken, is a clear _____________ Page 47 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 violation of the directions issued by the Hon'ble Supreme Court in S.L.P.(C) No.41475 of 2017 dated 22.12.2017 (Sucheta Das Das vs. State of Maharastra). Further, it is submitted that it is not clear as to how the final fee was fixed by the Committee by proceedings dated 19.06.2018 in the absence of appropriate material and data and such fixation is arbitrary and unreasonable. Further, the interim fee was fixed by proceedings dated 12.03.2017 by merely multiplying the existing fee by a factor of 3 without assessing the cost that will be incurred by the respective Medical Colleges in imparting education to the students. The procedure adopted is in clear violation of Regulation 3 of the Regulations, which has prescribed the factors to be considered by the Fee Committee while determining and approving the annual fee and while doing so, the source of payment whether it is Government Quota or Management Quota is not a relevant factor. Further, the Regulations does not empower to fix separate fee for students admitted under Management Quota alone and therefore, the Government order in G.O.Ms.No.24 is liable to be set aside.
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27.It is further submitted that the Medical Council of India, presently the National Medical Commission has not prescribed separate standards of education for Government Quota and Management Quota and to demand differential fee from the two categories of students irrespective of the quota under which, they were admitted is illegal. The fixation of separate fee for Government Quota and Management Quota has no rationale or nexus to the objects sought to be achieved and it is violative of Article 14 of the Constitution of India. The said classification is an unreasonable classification, it is discriminatory and arbitrary. Further, the learned counsel has referred to the observations made by the Division Bench in its order dated 18.07.2019 in W.P.Nos.23732 of 2017 etc., batch that fixing differential fee would run contrary to the decision of the Hon'ble Supreme Court in P.A.Inamdar.
28.The report of the Admission Fee Regulatory Committee For Professional Colleges in Kerala, with regard to the fee for MBBS Course for the academic year 2017-18, shows that the students have been classified _____________ Page 49 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 only into two categories, i.e., 85% of the students are under Government Quota and 15% under NRI Quota. The annual fee structure notified by the State of Karnataka would show that the fee fixed by the Government of Pondicherry is far and excess of the fee fixed in the said State. Further, when compared to the fee fixed by the Tamil Nadu Fee Fixation Committee with that of the fee fixed by the Pondicherry Fee Committee would show that the fee is unreasonable. Elaborate reference was made to the fixation of fee by Kerala Fee Fixation Committee to buttress the submission that the exercise undertaken by the Pondicherry based on the recommendation of the Fee Committee is arbitrary and unreasonable.
29.At the commencement of the hearing, the colleges raised an objection with regard to the maintainability of the writ petition by the Association. It was submitted that the Association was registered initially with seven members and the children of none of those members were students of any of these institutions, who were admitted in the academic year 2017-18. Therefore, it was contended that the Association cannot _____________ Page 50 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 espouse the case of the students, who were admitted in 2017-18, the Association does not have locus standi. Responding to the said preliminary objection, it is submitted by the learned counsel that the Association comprised only of parents of Medical students who are presently undergoing Medical Courses in the Medical Colleges situated in Pondicherry and it being a registered body, consisting only of parents of Medical students, it is entitled to protect the interest of all its members and their dependants. Further, it is submitted that since such technical objection was raised, the students have independently filed W.P.No.19466 of 2020 for the very same relief as sought for by the Association and the writ petition was also tagged along with the batch of cases. Therefore, it is submitted that the objection regarding locus standi has to necessarily fail.
30.It is reiterated that nowhere in the report of the Fee Committee dated 23.03.2017, it has been stated that it is applicable only to Government Quota seats. That apart, the fee which has been fixed is abnormally high and there is no rationale for fixing such fee and the exercise undertaken by _____________ Page 51 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the Committee before fixing the fee vide proceedings dated 23.03.2017 was not followed, the stakeholders were not heard, arbitrary exercise has been done resulting in illegal fee fixation orders. Further, it is submitted that after the expiry of the validity of the order of the Fee Committee dated 23.03.2017, the Government of Pondicherry has notified and revised the annual fee for MBBS Course without any distinction for Government Quota and Management Quota for a period of three years in G.O.Ms.No.39 dated 15.07.2017 based on the proceedings of the Fee Committee dated 19.05.2017. Therefore, there is no vacuum or discontinuity in preventing and notifying the annual fee amount from the year 2016-17 up to 2021-22 either by the Government or by the Fee Committee. With the above contention, the learned counsel submitted that the G.O.Ms.No.24 is liable to be set aside and the excess fee collected from the students is to be refunded.
31.As mentioned above, the first set of writ petitions, namely, W.P.Nos.19135/2017, 19136/2017 and 19137/2017 have been filed by Sri Venkateswara Dental and Medical College Hospital. The prayer sought for _____________ Page 52 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 in W.P.Nos.19135 and 19137 of 2017 are identical, questioning the fee fixation order dated 19.05.2017. The prayer sought for in W.P.No.19136 of 2017 is to quash the order dated 19.07.2017 by which the Government implemented the decision of the Fee Committee fixing tentative fee for the Management Quota seats.
32.The challenge to the Government Order dated 19.05.2017 is on the ground that the fee fixed is contrary to the directions contained in the judgments of the Hon'ble Supreme Court in Islamic Academy of Education, P.A.Inamdar and Modern College and Research Centre vs. State of Madhya Pradesh [(2010) 14 SCC 186]. It is further submitted that the fee fixation order dated 19.07.2017 fixing a temporary fee without reference to the relevant considerations and also the fee fixed by the Tamil Nadu Fee Committee is arbitrary. Further, it is contended that the order is arbitrary and ultravires in so far as it does not make any distinction between the Management Quota and Government Quota seats. Further, it is submitted that the order dated 19.05.2017 is arbitrary as it is based on the _____________ Page 53 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Fee Committee report dated 23.03.2017 which only adapted the fee fixed by the Tamil Nadu Fee Committee by increasing the existing fee by 32% without taking into account the relevant capital expenditure towards land and building and other infrastructures and expenses which are reflected in the accounts and financial statements which were furnished by the petitioner. With regard to the challenge to the Government Order dated 19.07.2017 is also identical to that of the challenge made in other two writ petitions.
33.The argument of the learned counsel appearing for the Institution is that the decision of the Fee Committee in its proceedings dated 23.03.2017 fixing the fee for the MBBS course was only for the Government Quota seats. This factual position become clear on perusal of the proceedings of the Fee Committee dated 12.07.2017, wherein decision was taken to fix a tentative fee for the Management Quota seats. Much reliance was placed on the letter written by the Government of Puducherry dated 23.06.2017 informing the Committee that the fee for the Management _____________ Page 54 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Quota was never fixed earlier and a request was made to fix the fee for the Management Quota seats. This argument is sought to be substantiated by referring to the counter affidavit filed by the Government of Puducherry in W.P.No.23732 of 2017, wherein they had stated that no separate fees fixed for the students admitted under Management Quota in the MBBS course up to the year 2016-17. The Medical Colleges have fixed their own fees structure and notified the same in the website of the respective Institution before commencement of admission. It was therefore submitted that the candidates/students who decided to join the Institutions were aware of the separate fees structure for the Management Quota seats and were admitted by the Colleges by paying the fees as fixed by the Colleges. It was further stated that during the year 2017-18 while fixing the fees structure for Post Graduate Medical/Dental courses, the Fee Committee directed to follow the same fees structure available in Tamil Nadu as a temporary measure until the Fee Committee meets and fixes the fees structure finally. Therefore, the Government of Puduchery issued an order dated 14.05.2017 fixing the separate temporary fees structure for Post Graduate Medical/Dental courses _____________ Page 55 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 under Management Quota and Government Quota. The said fees structure was further temporarily revised by order dated 24.05.2017 and subsequently finalized in G.O.Ms.No.8 dated 22.03.2018. It is further stated that while fixing the fees structure for Under Graduate courses for the year 2017-18, the Fee Committee in its meeting dated 19.06.2018 fixed the fees structure for Management/NRI Quota for the years 2017-18, 2018-19 and 2019-2020.
34.The argument of the learned counsel appearing for the students and the Association is that nowhere in the proceedings of the Fee Committee dated 23.03.2017 or in the Government Order dated 19.05.2017, there is any indication that the fee fixed is only for Government Quota seats and in the light of the decision of the Hon'ble Supreme Court, differential fee cannot be fixed.
35.The contention raised on behalf of the Association and the students first needs to be tested for its correctness on facts. It is only thereafter it has to be seen as to whether a differential fee can be fixed for _____________ Page 56 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the Government Quota seats and the Management Quota seats. Before we do so, we should clear the doubts/contentions raised about the effect of the judgment of the Division Bench in W.P.No.23732 of 2017, etc. batch dated 18.07.2019. In the said writ petitions, the students of the Institution before us challenged the circulars issued by the respective Institutions demanding payment of fee for 2018-19 and to direct the Institutions to abide by the proceedings of the Fee Committee dated 23.03.2017 and not to demand fee as per the tentative fee fixed by Government Order dated 19.07.2017 and the final fee fixed by G.O.Ms.No.24 dated 03.07.2018. The Division Bench in its judgment and order dated 18.07.2019 did not decide the correctness of the Government fee order dated 19.07.2017 or the correctness of the final fee fixation order in G.O.Ms.No.24 dated 03.07.2018, which are impugned before us and these writ petitions were delinked and ordered to be heard separately. Therefore, the Association/Students can place no reliance on the observations contained in the said judgment dated 18.07.2019 to substantiate these contentions in this batch of cases. _____________ Page 57 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020
36.The Association, petitioner in W.P.No.24161 of 2018 state that it is a registered Association comprising of medical students and their parents as members which was formed with the object to promote and develop the welfare of the medical students studying in various Medical Colleges in the Union Territory of Puducherry. The Association states that the amount payable by medical students for the various courses offered by the Colleges is one of the prime concern of the Association. Admittedly the Association was registered only in the year 2018 and the challenge in W.P.No.24161 of 2018 is only with regard to the fixation of differential fee in G.O.Ms.No.24 for Medical College students in the three Medical Colleges and for a consequential direction to collect the fee only in accordance with the Government Order dated 19.05.2017. It may be true that in all cases the students cannot be compelled to approach the Court especially when they are pursuing their education and litigating against the Institution in which they are studying may lead to certain other problems. Nevertheless if the parents of those students were aggrieved by the fee structure, nothing _____________ Page 58 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 prevented them from seeking appropriate relief before the appropriate forum or approach the Court to vindicate their grievances. Admittedly no such attempt appears to have been done by any of the parents of those students who were admitted based on the fees structure fixed in G.O.Ms.No.24. In fact when the tentative fee was fixed by the Fee Committee which was notified by the Government Order dated 19.07.2017 the students were informed that the fee fixed is tentative and subject to modification and all the students have executed letters of undertaking agreeing that the fixation of fee by Government Order dated 19.07.2017 is only tentative.
37.Thus the larger question would be as to whether the Association or the students can now take a stand that they are not required to pay the fee as fixed in G.O.Ms.No.24 and the fee which was fixed by the Government Order dated 19.05.2017 has to be adopted. This argument is predicated on the submission that the Government Order dated 19.05.2017 fixing the fee does not distinguish between Government Quota seats and Management Quota seats and therefore the said order would be applicable to the _____________ Page 59 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 petitioners in W.P.No.19466 of 2020 and consequently, G.O.Ms.No.24 has to be struck down. The argument made on behalf of the students and the Association is difficult to accept for the reason that when the proceedings of the Committee was passed on 23.03.2017, no fees structure was fixed for the Management Quota seats. This fact cannot be denied by the students/Association as at the relevant time, it is the respective Institutions which had fixed their fee and notified in their website. The Government in no uncertain terms informed the students that the tuition fee payable by them shall be the fee as notified by the respective Institution. Therefore, it will be too late for the students to now state that the fee fixation order date 19.05.2017 has to be uniformly applied for all category of seats when the factual position was otherwise. This aspect gets fortified on reading the Committee's order dated 12.07.2017. The Committee has specifically recorded that the Government of Puducherry dated 23.06.2017 had addressed the Committee stating that till that date the Committee has not fixed the fee for Management Quota for Under Graduate Medical/Dental courses in Private Self Financing Medical/Dental Colleges in the Union _____________ Page 60 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Territory of Puducherry. This has been reiterated by the Government of Puducherry by letter dated 29.06.2017. Thus, it cannot be disputed that prior to 23.06.2017 there is nothing on record to show that the Fee Committee had fixed the fee for the Management Quota seats and for the first time, the issue was taken up for consideration in the meeting of the Fee Committee held on 12.07.2017. Further, CENTAC took over the entire admission process by way of Centralized Counseling from the academic year 2017-18 and it is only from the said academic, the Fee Committee fixed the fee for the Management Quota and NRI Quota seats. The Association/petitioners would fault the procedure adopted by the Committee that tentative fee fixation had no validity in the eye of law, differential fee could never have been fixed as it would fall foul of the dictum in T.M.A.Pai Foundation and Islamic Academy and the exercise which was done by the Committee before passing the order dated 23.03.2017 was not followed, stakeholders were not heard and an adhoc fee has been fixed by merely following the pattern in Tamil Nadu.
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38.In Islamic Academy of Education, the Hon'ble Supreme Court pointed out that there can be no fixing of a rigid fees structure by the Government, each Institute must have the freedom to fix its own fees structure taking into consideration the need to generate funds to run the Institution and to provide facilities for the benefit of the students. The Institutions should also be able to generate a surplus which must be used for the betterment and growth of the educational institutions. In no uncertain terms, it was held that there can be no profiteering and capitation fee cannot be charged. The Court proceeded to issue directions to give effect to the judgment of T.M.A.Pai Foundation's case by constituting a Committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. Each educational institution was required to place before the Committee, well in advance of the academic year, its proposed fees structure. Along with the proposed fees structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the _____________ Page 62 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 fees proposed by the Institution are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fees structure or to propose some other fees structure which can be charged by the Institution and the fee fixed by the Committee shall be binding for a period of three years.
39.In P.A.Inamdar, the Hon'ble Supreme Court sounded a note of caution to Fees Committees as the petitioner therein had severely criticized the functioning of some of the Committees so constituted stating that some of the Committees have indulged in assuming such powers and performing such functions as were never given or intended to be given to them by Islamic Academy. Certain decision of the Committee were subjected to serious criticism by pointing out that the fees structure approved by them was abysmally low which has rendered the functioning of the Institution almost impossible or made the Institution to run into losses. Further the Court noted that in some of the Institutions, the teachers have left their jobs and migrated to other Institution as it was not possible for the Management _____________ Page 63 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 to retain talented and highly qualified teachers against the fee permitted by the Committees. It was pointed out that the retired High Court Judges heading the Committees are assisted by experts in Accounts and Management may also have the benefit of hearing the contending parties. Thus, it was observed that the Committees, so long as they remain functional shall be more sensitive to act rationally, reasonably and with due regard to realities. They should refrain from generalizing the fees structure and whenever needed should go into accounts, schemes, plans and objects of an individual Institution for the purpose of finding out what would be an ideal and reasonable fees structure for that Institution. Further, it was made clear that in case of any individual Institution, if any of the Committees is found to have exceeded its powers by unduly interfering in administration and financial matters of the unaided of the Private Professional Institutions, the decision of the Committee being quasi-judicial in nature would always be subject to judicial review. Thus, the challenge to the setting up of the two Committees, to regulate the admission and the fees structure was rejected.
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40.In Pramati Educational & Cultural Trust vs. Union of India [W.P(C)No.416 of 2012, dated 06.05.2014], the challenge was to the validity of Article 15(5) of the Constitution as inserted by the Constitution (Ninety-third Amendment) Act, 2005 with effect from 20.01.2006 and on the validity of Article 21A of the Constitution inserted by the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from 01.04.2010. Article 15(5) of the Constitution enables the State to make a special provision, by law, for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30 of the Constitution.
41.The constitutional validity of Article 15(5) of the Constitution was considered by the Constitution Bench of the Hon'ble Supreme in Ashoka Kumar Thakur vs. Union of India [(2008) 6 SCC 1] and the clause was _____________ Page 65 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 held to be valid and does not violate the "basic structure" of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. The question whether Article 15(5) was constitutionally valid, insofar as "private unaided" educational institutions were concerned, the question was left open and this issue was decided in Pramati Educational & Cultural Trust.
42.The Two substantial questions of law, which were referred to in Pramati Educational & Cultural Trust, were (i) whether by inserting Clause (5) in Article 15 of the Constitution (Ninety-third Amendment) Act, 2005, Parliament had altered the basic structure or framework of the Constitution; and (ii) whether by inserting Article 21A of the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament had altered the basic structure of framework of the Constitution. While answering the first question, the Hon'ble Supreme Court took note of the Statement of Objects and Reasons of the Bill, which after enactment became the Constitution (Ninety-third Amendment) Act, 2005 and it was observed that the object is _____________ Page 66 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 to provide equal opportunity to a large number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to study in educational institutions and equality of opportunity is also the object of Clauses (1) and (2) of Article 15 of the Constitution and accordingly, it was held that Clause (5) of Article 15 of the Constitution is not an exception or a provision overriding Article 15 of the Constitution, but an enabling provision to make equality of opportunity promised in the preamble in the Constitution a reality.
43.The next question, which was considered was whether Article 15(5) of the Constitution has destroyed the right under Article 19(1)(g) of the Constitution to establish and administer private educational institutions. Noting the decision in T.M.A.Pai Foundation, wherein it was held that the establishment and running of an educational institution “is occupation” within the meaning of Article 19(1)(g) of the Constitution, took note of paragraph 20 of the majority judgment while dealing with the four components of the rights under Articles 19 and 26(a) of the Constitution in _____________ Page 67 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 respect of private unaided non-minority educational institutions. The observations made therein were noted wherein, it was held that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discharge the principle of merit and therefore, it would be permissible for the University or the Government, at the time of granting recognition, to require a private unaided institution to provide for "merit-based" selection while, at the same time, giving the management sufficient discretion in admitting students. It was held that this can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students, who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State Agency. It was further pointed out that this will incidentally take care of poorer and backward sections of the society and the prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be _____________ Page 68 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 fixed for minority unaided and non-minority unaided and professional colleges and the same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post-graduation non-professional colleges or institutes.
44.After noting the said decision, it was pointed out that the content of the right under Article 19(1)(g) of the Constitution to establish and administer private educational institutions, as per the judgment in T.M.A.Pai Foundation, includes the right to admit students of their choice and autonomy of administration making it clear that this right and autonomy will not be affected if a small percentage of students belonging to the weaker and backward sections of the society were granted freeships or scholarships, if not granted by the Government. Thus, it was held that the identity of the right of private educational institutions under Article 19(1)(g) of the Constitution was not to be destroyed by admissions from amongst educationally and socially backward classes of citizens as well as the Scheduled Castes and the Scheduled Tribes.
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45.Further, the Hon'ble Supreme Court in Pramati Educational & Cultural Trust noted the decision in P.A.Inamdar and observed that in the said decision, the Hon'ble Court was of the view that the judgment in T.M.A.Pai Foundation held that there was no power vested on the State under Article 19(6) of the Constitution to regulate or control admissions in the unaided educational institutions so as to compel them to give up a share of the available seats to the State or to enforce the reservation policy of the State or available seats in unaided professional institutions. After noting paragraph 125 in P.A.Inamdar, it was held that the appropriation of seats by the State for enforcing a reservation policy was not a regulatory measure and not reasonable restriction within the meaning of Article 19(6) of the Constitution, as there was no provision other than Clause (6) of Article 19 of the Constitution under which the State could in any way restrict the fundamental right under Article 19(1)(g) of the Constitution. It was thus, pointed out that Clause (5) in Article 15 of the Constitution vests power on the State, independent of and different from the regulatory power under _____________ Page 70 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Clause (6) of Article 19 and the Hon'ble Court proceeded to examine whether this new power vested in the State which enables the State to force the charitable element on a private educational institution destroys the right under Article 19(1)(g) of the Constitution. After noting that Clause (5) of Article 15 was inserted to enable the State to make a law making special provisions for admission of socially and economically backward classes of citizens or for the Scheduled Castes and Scheduled Tribes for their advancement and to a very limited extent affected the voluntary element of this right under Article 19(1)(g) of the Constitution and therefore, rejected the contention of the colleges that the identity of their right under Article 19(1)(g) of the Constitution has been destroyed by Clause (5) of Article 15 of the Constitution.
46.Further, it was held that the power in Clause (5) of Article 15 of the Constitution is a guided power to be exercised for the limited purposes stated in the clause and as and when a law is made by the State in purported exercise of the power under Article 15(5), the Court will have to examine _____________ Page 71 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 and find out whether it is for the purposes of advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is confined to admission of such socially and educationally backward classes of citizen or for the Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or unaided. The Hon'ble Court rejected the contention that Article 15(5) of the Constitution fails to make a distinction between aided and unaided educational institutions and those alike and it was held that in doing so, it is not violative of Article 14 of the Constitution.
47.The exclusion of minority institutions referred to in Clause (1) of Article 30 was held to be justified. The contention of the institutions that excellence would be compromised by admission from amongst the backward classes of citizens and the Scheduled Castes and the Scheduled Tribes in private institutions was rejected as being contrary to the preamble of the Constitution which promises to secure to all citizens "fraternity assuring the dignity of the individual and the unity and integrity of the _____________ Page 72 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 nation". Accordingly, it was held that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Hon'ble Bhandari, J. in Ashoka Kumar Thakur that the imposition of reservation on unaided institutions by the Ninety-third Amendment abrogated Article 19(1)(g) was held to be not correct and the insertion of Clause (5) of Article 15 of the Constitution was held to be valid.
48.Thus, the distinction between the State Quota, which are popularly known as “free seats” and the Management Quota has been held to be constitutionally permissible consequent upon the insertion of Clause (5) in Article 15 of the Constitution. Thus, the Association and the students cannot contend that there can be no distinction in the seats by earmarking a specific quota for the Government and remaining for the Management. That apart, in the Union Territory of Puducherry, ever since the private unaided Medical Colleges were established, there were two category of seats namely, the Government Quota seats and Management Quota seats and _____________ Page 73 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 there were two fee structures. This is clear from the Pondicherry Private Professional Educational Institutions (Provisions of Reservation, Admission of Students and Fixation of Fees) Regulations, 2006 which was issued on 25.05.2006 stipulating two categories of seats and two fee structures. Furthermore, it has been factually established that prior to the Government Order dated 19.07.2017, fee was never fixed in the Union Territory of Puducherry for Management Quota and NRI Quota seats.
49.At this juncture, we take note of the submissions made by the learned counsel for the National Medical Commission (for brevity “NMC”), who has placed before us the National Medical Commission Act, 2019 (Act 30 of 2019) (for brevity “the NMC Act”). Under Section 10 of the said Act, powers and functions of Commission are enumerated. In Section 10(1)(i), the Commission has power to frame guidelines for determination of fees and other charges in respect of fifty per cent of seats in private medical institutions and deemed to be universities, which are governed under the provisions of the NMC Act.
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50.The learned counsel has also placed before us the Draft Guidelines framed by the NMC under Section 10(1)(i) of the NMC Act for fee fixation on which, public comments have been invited and it is submitted that till date 18,000 comments have been received from various stakeholders and the same are in the process of being considered.
50.1.Under Clause 6 of the Draft Guidelines, it is proposed that the fees can be fixed for a block of three years or on a year to year basis and the fee so fixed for a student joining a college in a particular year stood remain the same for the entire duration of his study in the college, subject to inflation adjustment, as considered appropriate by the State Fee Regulatory Authority.
50.2.In terms of Clause 7, all private teaching institutions should be advised to adopt operation segment reporting in accordance with the Ministry of Corporate Affairs, Government of India, notified Indian Accounting Standards (Ind AS) 108 in respect of expenses. _____________ Page 75 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 50.3.Clause 8 states that all hospital expenses are not to be included in computing the cost for providing medical education and a portion of hospital expenses arrived at on the basis of usage of hospital facilities and equipments for imparting the medical education may be added for arriving at the fees.
50.4.Further, in Clause 9, salaries of the teaching staff and other non- teaching staff should be taken into account for the purpose of determination of fees for medical education.
50.5.Clause 23 would state that some of the State Authorities fix the fee for MBBS and other Courses college-wise separately while in some other States, it is fixed on the basis of the median costs of all the medical colleges on consensus basis. It further states that in case a State Fee Regulatory Authority desires to adopt uniform fee structure in the State, it could do so, provided there is consensus among the colleges and the range _____________ Page 76 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 between the minimum fees and the maximum fees calculated for colleges in the State is nominal and does not cause unnecessary financial hardship to the students.
50.6.In Clause 24, it is proposed that the fees determined on the basis of the guidelines should not be more than the existing fees determined by the State Fee Regulatory Authority.
50.7.Clause 25 would be very relevant which states that in States, where more than 50% seats in private medical colleges are already regulated under the relevant State Act by way of Government Quota and other quotas with concessional fees, such higher percentage of Government Quota seats should be maintained.
50.8.In Clause 26, it is proposed that the same set of guidelines applicable to private medical colleges under the purview of the State Fee Regulatory Authorities should be applicable to the deemed to be _____________ Page 77 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Universities also and an enabling amendment to the relevant State Fee Regulation Act, as deemed necessary, should be considered.
Thus, the argument on behalf of the Association and the Student that there can be no differential fee for the Government Quota and Management Quota is an argument which cannot be accepted, more particularly when, Article 15(5) of the Constitution having been held to be valid, the question of cross subsidy would not arise.
51.Furthermore, the NMC Act also gives power to the Commission only to fix the fee for fifty per cent of the seats. At this juncture, it would be beneficial to refer to the decision of the Hon'ble Supreme Court in Modern Dental College and Research Centre vs. State Madhya Pradesh [AIR 2016 SCC 2601], wherein it was held as follows:-
“87.In any case, since this Court in P.A. Inamdar [P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] has held that there cannot be any fixation of quota or appropriation of seats by the State, reservation which inheres setting aside quotas, would not be permissible. It is, thus, _____________ Page 78 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 argued that the provisions seek to bring back the Unni Krishnan [Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : 1 SCEC 523] system of setting up State quotas which has been expressly held by this Court to be impermissible. This argument is to be noted to be rejected. In fact, as can be seen from the impugned judgment [Assn. of Private Dental and Medical Colleges v. State of M.P., 2009 SCC OnLine MP 760] having regard to the provisions of clause (5) of Article 15 of the Constitution, there was no serious challenge laid to Section 8 read with Rules 4(2), 7 and 15 of the 2008 Rules. In fact, the counsel for the appellants conceded that they had not challenged the 93rd Constitutional Amendment vide which Article 15(5) was inserted into the Constitution. In any case, there is hardly any ground to challenge the said constitutional amendment, which has already been upheld by a Constitution Bench judgment in Pramati Educational and Cultural Trust [Pramati Educational & Cultural Trust v. Union of India, (2014) 8 SCC 1 : 6 SCEC 699]. The only other argument raised was that a reading of the reservation provisions in Rule 7 of the 2009 Rules would show that it would be difficult to _____________ Page 79 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 work out said percentage having regard to the fact that number of seats in the postgraduate dental and medical courses in different specialised disciplines are few. The High Court has successfully dealt with this argument by appropriately demonstrating, by means of charges, that not only was it possible to work out extent of reservation provided for different categories, sufficient number of seats were available for general categories as well. We, thus, do not find any merit in the challenge to the reservation of seats for SCs/STs and OBCs, etc. which is in consonance with Article 15(5) of the Constitution.” Therefore, in the light of the above decision, we are to necessarily hold that when there are differential quotas, viz., the Government Quota and the Management Quota, a differential fee structure would also be permissible.
52.Having steered clear of the above issue, the next issue to be examined is whether under the guise of charging a differential fee, whether the Management is collecting capitation fee and is there profiteering. On going through the proceedings of the Fee Committee dated 23.03.2017, _____________ Page 80 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 12.07.2017 and 19.06.2018, we find that the procedure adopted by the Fee Committee is largely in tune with the Draft Guidelines proposed by the NMC, which is now under circulation and comments have been invited from all stakeholders.
53.In Vasavi Engineering College Parents Association vs. State of Telengana [(2019) 7 SCC 172], the fee structure notified by the State Government based on the recommendations of the Fee Regulatory Committee was put to challenge. The Hon'ble Supreme Court while examining the challenge to the fee fixation order, pointed out the scope of judicial review, that it lies against the decision-making process and not the merits of the decision itself and the Court in the garb of judicial review, cannot usurp the jurisdiction of the decision maker and make the decision itself. Further, it was held that complex executive decisions in economic matters are necessarily empiric and based on experimentation and its validity cannot be tested on a rigid principle or the application of any straitjacket formula and the Court while adjudging the validity of an _____________ Page 81 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 executive decision in economic matters, must grant a certain measure of freedom or play in the joints to the executive. Further, it was pointed out that the recommendations made by a statutory body consisting of domain experts not being the satisfaction of the State Government is entirely a different matter with which the Court was not concerned and that the Court should be loath to interfere with such recommendation of an expert body and accepted by the Government, unless it suffers from vice of arbitrariness, irrationality, perversity or violates any provisions of the law under which it is constituted. It was further held that the Court cannot sit as an appellate authority, entering the arena of disputed facts and figures to opine with regard to the manner in which the Fee Fixation Committee ought to have proceeded without finding any violation of rules or procedure. Further, after noting the decisions in Islamic Academy of Education and T.M.A.Pai Foundation, it was observed that fee fixation by the Committee is not an adversarial exercise but is meant to ensure balance in the fee structure between the competing interest of the students, the institution and the requirement and the desire of the society for accessible quality education. It _____________ Page 82 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 was further held that it is but a part of the high concept of fairness in opportunities and accessibility to education, which is avowed constitutional goal. Thus, the order of the High Court interfering with the recommendation of the Fee Fixation Committee was held to be excessive of its jurisdiction and the orders of the High Court were set aside. It would be beneficial to refer to the following paragraphs of the judgment:-
“25.Islamic Academy of Education [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 : 2 SCEC 339] was a sequel to T.M.A. Pai Foundation v. State of Karnataka [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , which was being understood in different perspectives leading to several litigations. The fixation of fee by TAFRC is not an adversarial exercise but is meant to ensure balance in the fee structure between the competing interest of the students, the institution and the requirement and desire of the society for accessible quality education. It is but a part of the high concept of fairness in opportunities and accessibility to education, which is an avowed constitutional goal. But to equate it to the extent of a right to challenge and interference only on basis of a different view being possible, cannot be a justification to _____________ Page 83 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 interfere with the recommendation of an Expert Committee. It is nobody's case that TAFRC has acted contrary to principles of accounting and economics or any fundamental precincts of the same. In this context, the following observations in Modern School v. Union of India [Modern School v. Union of India, (2004) 5 SCC 583 : 2 SCEC 577] , are considered relevant in the necessary extract : (Modern School case [Modern School v. Union of India, (2004) 5 SCC 583 : 2 SCEC 577] , SCC pp. 602 & 614, paras 20 & 51) “20. We do not find merit in the above arguments.
Before analysing the rules herein, it may be pointed out, that as of today, we have Generally Accepted Accounting Principles (GAAP). As stated above, commercialisation of education has been a problem area for the last several years. One of the methods of eradicating commercialisation of education in schools is to insist on every school following principles of accounting applicable to not-for- profit organisations/non-business organisations. …
51. Indisputably, the standard of education, the curricular and co-curricular activities available to the students and various other factors are matters which are relevant for determining of the fee _____________ Page 84 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 structure. The courts of law having no expertise in the matter and/or having regard to their own limitations keeping in view the principles of judicial review always refrain from laying down precise formulae in such matters. Furthermore, while undertaking such exercise the respective cases of each institution, their plans and programmes for the future expansion and several other factors are required to be taken into consideration. The Constitution Bench in Islamic Academy of Education [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697: 2 SCEC 339] which as noticed hereinbefore subject to making of an appropriate legislation directed setting up of two Committees, one of which would be for determining fee structure. This Court, both in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] and Islamic Academy of Education [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 : 2 SCEC 339] had upheld the rights of the minorities and unaided _____________ Page 85 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 private institutions to generate a reasonable surplus for future development of education.”
26.Before concluding the discussion, in view of the reasons stated by the High Court for fixation of the appropriate fee structure by itself, reference may usefully be made to the observations in D.N. Jeevaraj v. State of Karnataka [D.N. Jeevaraj v. State of Karnataka, (2016) 2 SCC 653 : (2016) 2 SCC (Civ) 171] , as follows : (SCC p. 671, para 43) “43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the _____________ Page 86 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine.”
27.The High Court relied on CAG v. K.S. Jagannathan [CAG v. K.S. Jagannathan, (1986) 2 SCC 679 : 1986 SCC (L&S) 345] and Badrinath v. State of T.N. [Badrinath v. State of T.N., (2000) 8 SCC 395 : 2001 SCC (L&S) 13] to justify the taking over of the decision-making process by itself from TAFRC on four grounds. In our opinion, both the judgments are completely distinguishable on their own facts and have no relevance to the question for consideration in the present case. K.S. Jagannathan [CAG v. K.S. Jagannathan, (1986) 2 SCC 679 : 1986 SCC (L&S) 345] concerned promotion to the Subordinate Accounts Service. Badrinath [Badrinath v. State of T.N., (2000) 8 SCC 395 : 2001 SCC (L&S) 13] related to a claim for promotion to super-time scale. Both the cases have no relevance to the present controversy concerning economic recommendations made by a statutory committee consisting of domain experts, and approved by the Government. We are, therefore, of the considered opinion in the facts of the present case, as demonstrated from the available records that none of the four grounds set out by the High Court can be considered as making out an exceptional case to warrant usurpation of _____________ Page 87 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the decision-making jurisdiction of TAFRC by the High Court.”
54.In the writ petitions before us, the challenge to the tentative fee is both for and by the students and the Colleges. Merely using the words irrational, arbitrary and unreasonable cannot brand a quasi judicial order to be so. All these three contentions which have been raised have to be established to make out a case of arbitrariness, irrationality or unreasonableness. In the preceding paragraphs, we have noted the findings recorded by the Fee Committee in the proceedings dated 12.07.2017. The Government of Puduchery on 23.06.2017 addressed the Committee stating that prior to the said date, the fees for the Management Quota for Under Graduate Programme has not been fixed in the Union Territory of Puducherry. The Committee took into consideration the letter given by the Government of Puducherry. As in its opinion, the fees for the Management Quota seats also required to be regulated and as a matter of fact, there was no such regulation of the fee structure by the Fee Committee earlier to 2016. It is an undisputed fact that until the fee fixation order dated 12.07.2017, the _____________ Page 88 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Institutions were fixing their own fees structure and notifying it in their website and the Government themselves have advised the students to acquaint themselves to the fees fixed by the respective Institutions and pay the same. This fact has been clearly set out by the Government in their counter affidavit filed in W.P.No.23732 of 2017. Therefore, there is no dispute to the fact that no separate fee structure was fixed for the students admitted under the Management Quota in MBBS Course up to the year 2016-17.
55.What is crucial is the date of the letter sent by the Government which is 23.06.2017. In terms of the directives issued by the Hon'ble Supreme Court, the admissions to MBBS course has to be completed by 30th September of every year and beyond the said period, no Institution or Government is entitled to admit students to MBBS course, unless and until specific orders are obtained from the Hon'ble Supreme Court. Therefore, when the Government addressed the Fee Committee by letter dated 23.06.2017, the admission process would have commenced or in the process _____________ Page 89 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 of being commenced and a clarity was required for the students who are desirous of joining MBBS course in the Management Quota seats. The Institutions took advantage of the meeting convened by the Committee on 12.07.2017 and sought for reviewing the proceedings of the Fee Committee dated 23.03.2017 which was rightly rejected by the Committee. Thereafter, the Committee proceeded to consider the request made by the Government of Puducherry as well as the Management of the Colleges for fixing the fee for the students to be admitted in the Management Quota from the academic year 2017-18 onwards. The particulars and data furnished by the Institutions were found to be inadequate. The technical member, namely, the Chartered Accountant had suggested that the Institution should submit proposals and data and since the same was not readily available, the Institutions sought for time.
56.Thus, considering that the request made by the Government to regulate the fees structure for the Management Quota seats and also bearing in mind that the admission process has to begin, the Fee Committee took a _____________ Page 90 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 decision to tentatively fix the fee for the Management Quota seats. The Institutions readily agreed to such tentative fixation of fees and also gave it in writing. As it was found that the particulars and data produced were inadequate, as an interim arrangement the Fee Committee was enjoined upon a duty to proceed rationally and reasonably keeping in mind that the interest of the student which was paramount. As and when a tentative decision is required to take place, there has to be a reasonable approach leading to the tentative decision. In other words, the tentative decision cannot be manifestly arbitrary and wholly untenable. It is not as if there were no details or particulars available before the Committee but in the opinion of the technical member [Chartered Accountant], the particulars and details were inadequate. The Institutions agreed to provide the details, but sought time to do so. Thus, the Committee had to take a decision in the matter as to what has to be done in the given facts and circumstances. As pointed out by the Hon'ble Supreme Court in P.A.Inamdar, the Committee was required to be sensitive and to act rationally and reasonably with due regard to realities. The reality in the instant case was that for the first time _____________ Page 91 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 for the academic year 2017-18, the fee for the Management Quota seats was to be regulated. The fee had to be regulated at the earliest before commencement of the admission process which had to be completed before 30th September. In such circumstances, the Committee took note of the ground realities, examined as to the procedure adopted by the Government of Tamil Nadu based on the fee fixation orders of the Committee for the State of Tamil Nadu and accordingly fixed the tentative fee of Rs.12 Lakhs for the Management Quota seats for the academic year 2017-18 and Rs.20 lakhs for the NRI Quota seats. The order passed by the Committee clearly states that the fixation is tentative and the final fixation will be done after evaluating the necessary particulars, proposals, data, information, etc. to be received from the Colleges and therefore, the Committee directed that the Management should inform the students that the fee fixed in the proceedings dated 12.07.2017 is tentative and subject to modification and necessary undertaking letters were to be obtained from the students in this regard. It is not in dispute that those students who are petitioners also have executed such undertaking and with their eyes wide open, they have _____________ Page 92 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 accepted to the position and joined the course. After having joined the course and paid the fees as fixed by the Committee for three academic years, the present attempt of the students by filing a writ petition in December 2020 has to be rejected as a clear after thought. It was argued by Mr.V.B.R.Menon, learned counsel that there can be no estoppel when the Committee had no jurisdiction to fix differential fee for Management Quota and Government Quota seats. In the preceding paragraphs, we have upheld the differential fee fixation and hence such argument is rejected. In the case on hand, we are taking note of the conduct of the students who have executed letters of undertaking stating that the fees fixed is only tentative. Therefore, the students are estopped by their own conduct in now challenging the order passed by the Government in G.O.Ms.No.24 dated 03.07.2018.
57.The learned counsel appearing for the Association/students placed reliance on the decision in Subharati K.K.B. Charitable Trust vs. Abhishek Kadian [2010 SCC OnLine All 1904], to support his contention that there _____________ Page 93 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 can be no estoppel merely because the student/parents have executed Letters of Undertaking while they joined the course based on the tentative fee fixed by the Fee Committee and pursuant to the Government Order dated 19.07.2017.
58.In Subharati K.K.B. Charitable Trust, the students were allotted to the said college pursuant to counselling held on 15.04.2003 and deposited the fee on 24.05.2003 as claimed by the institution both for Government Quota and for Management Quota seats. The students contended that they have been allocated the seats, they had no choice since non-payment of fees, as claimed by the College, would have resulted in denial of admission to the students and before the fee for the second year on the same rate could be realised, they filed the writ petition challenging the entitlement of the college to realise the fees as fixed by it. The Hon'ble Court pointed out that the question as to what fee the students were liable to pay, is a question which was dependent on the consequence of the judgment of the Apex Court and the interpretation of the judgment and the power of _____________ Page 94 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the State Government to regulate the fee structure (to be noted that the case related to admission to MBBS Course for the year 2003-04). On facts, the Hon'ble Court held that the principle of estoppel may not apply. The Court referred to and relied upon a decision of the High Court of Kerala in Sandeep V. & Ors. vs. State of Kerala [AIR 2005 Kerala 148], which was the case where students were admitted in self-financing medical college in the academic year 2003-04. After they completed the first year, when they entered the second year, there was a demand for higher fee as fixed by the Fee Fixation Committee for the academic year 2004-05. The students had also executed a bond promising to adhere to the fixation of fee. The colleges contended that the students cannot wriggle out from their bond. This contention was rejected on the ground that the State Government had issued Government Order dated 12.09.2003 and also the clarification dated 09.01.2004 and the same is applicable only for the year 2003-04, but for the subsequent year, the fee as approved by the Committee appointed pursuant to Islamic Foundation is payable. Furthermore, in the said decision, the advertisement issued by the Director of Medical Education was to inform _____________ Page 95 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 the students to obtain the details of “other fee” from private college of their own and this did not pertain to tuition fee and the Court held that “other fee” cannot be read to mean the fee fixed by the State Government as tuition fee. The decision in Subharati K.K.B. Charitable Trust, as well as the decision relied thereon in Sandeep V. are clearly distinguishable on facts.
59.The learned counsel appearing for the Association placed reliance on the decision in Vivekananda Institute of Professional Studies vs. Government of NCT [(2018) SCC OnLine Del 12287], largely to support his contention that differential fees cannot be levied. The Court after noting that there is no ingrained rule, inflexible in application, that if there are two methods of admission to private colleges, there must be a differential fee structure. After the said observation, the Court took into consideration Section 7 of the Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other measures to ensure equity and Excellence) Rules, 2007 and it was observed that Section 10 under the said Act enjoins that a college or _____________ Page 96 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 institution cannot collect any amount for admission in excess of what is determined by the Committee. We find the said judgment to be wholly inapplicable to the facts of the case on hand.
60.As mentioned above, ever since 2006, the distinction in the fee structure has been in vogue and in the light of the decision in Pramati Educational & Cultural Trust, the creation of a Government Quota and Management Quota is no longer open to challenge. The only method on which the challenge can be maintained is by establishing that the fees fixed for Management Quota seats are in the nature of a capitation fee and amounting to profiteering. This has not been the case of the Association/students who are before us, but would seek to implement the proceedings of the Fee Committee dated 23.03.2017, which was not the fee fixed for Management Quota seats, as for the first time, in the Union Territory of Puducherry, fee was fixed for Management Quota and NRI Quota tentatively by Government Order dated 19.07.2017. _____________ Page 97 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020
61.As mentioned above, the students who are said to be aggrieved have secured admission pursuant to the fee fixation order dated 19.07.2017. They have reconciled with the fact that the fee fixation is tentative and to the said effect, they have also given it in writing. Thus, the students/parents were well aware that there would be a final fixation of the fee which ultimately was done in G.O.Ms.No.24 dated 03.07.2018. Thus, on facts, the principle of estoppel is squarely apply and would bind the students. An objection was raised on behalf of the students that they were not made parties to the writ petitions filed by the colleges challenging the Government Fee Order dated 19.05.2017. Likewise, colleges argued that the Association, which was formed in the year 2018 with seven members, none of whose ward were students of any of the Medical Colleges. Firstly, the students, who were admitted pursuant to the Government Fee Order 19.07.2017 cannot claim that they should be made party to a writ petition filed by the Colleges challenging the Government Fee Order dated 19.05.2017. It is stated that the seven members who initially formed the Association, all of them are parents of the students studying in the various _____________ Page 98 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 colleges. Since we have dealt with the larger issue, these contentions become inconsequential and in any event, the students admitted for the academic year 2017-18 cannot seek to apply the fee structure which was fixed much earlier to their admission, which admittedly was only in respect of Government Quota seats. That apart, we find that all the students, who were admitted to the Management Quota in the colleges before us, had not filed the writ petition and it is submitted that out of 95 students in the 5 th respondent college/Sri Venkateshwara Medical College Hospital and Research Centre, only one student has approached the Court, that too, after paying the fee in terms of the Government Fee Order dated 19.07.2017 and also executing the Letter of Undertaking. In one of the writ petitions, viz., W.P.No.19466 of 2020, none of the students of Sri Manakula Vinayagar Medical College and Hospital are concerned. We have observed earlier that the attempt of the Association/students is a belated attempt. Undoubtedly, the attempt made by the Students and filing a writ petition in the year 2020 cannot in manner improve their case as by then, they had already paid the fees for three years.
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62.One more aspect, we need to point out is that NRI Quota was introduced in the year 2006. Admittedly, the institutions were fixing the fees for the said quota by themselves. It is not known as to whether the Government of Puducherry or any authority of the Government were aware of the fee fixed for NRI Quota from the year 2006. The fact that in the proceedings of the Fee Fixation Committee dated 23.03.2017, there have been more specific mention about NRI Quota seats is a fact which would also go to prove that until the said date, no fee was fixed for Management Quota or NRI Quota seats.
63.The Association and the petitioner would state that the fee fixed by the Committee in its proceedings dated 19.06.2018 is arbitrary. As mentioned above, the Committee was empowered to fix the final fee as the earlier Committee by proceedings dated 12.07.2017 had fixed only a tentative fee. The Colleges produced the audited statement for the year 2016-17, provisional statement for 2017-18, projected statement for _____________ Page 100 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 2018-19 and the cost per student for the 2016-17 [produced by one College only]. They submitted the cost per student for the allowed intake and actual intake of students. The Committee considered the proposal submitted by the Colleges and found that the proposal was on a higher side and it needs to be pruned. In the process of fixation, the Committee took into account the inspection reports prepared by the previous Committee which was done after comprehensive inspection of the Colleges concerned. The Chartered Accountant who was a member of the Committee in his report observed that the cost of living in Puducherry is more than in Tamil Nadu. Taking note of these factors, the Committee observed that it has the responsibility of ensuring that the interest of students on one hand and that of the Management on the other hand has to be protected. Further, it has to be borne in mind that commercialization and profiteering are prohibited. It observed that no undue burden should be allowed to be cast upon the students and at the same time, the Management should not be put to any hardship and they are entitled to the actual cost of imparting education as the Institution exists for the students. Further, the Committee observed that _____________ Page 101 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 it is equally important that only if the Institutions keep going, the students would be beneficiaries. Therefore, the Committee thought fit to find a mean between the interest of the Management and that of the students as one cannot co-exist without the other.
64.The Committee keeping in view the principles laid down in the judgments of the Hon'ble Supreme Court with the aid of the Chartered Accountant, member who had scrutinized all the materials produced by the Management and taking note of the fact that only one Medical College submitted the detailed working of cost per student and the other two Colleges have submitted a proposal which are not verifiable. Therefore, the projections and provisional statements were re-worked with disallowance of expenditure on a percentage basis for arriving the cost per student. The workings presented by the College were rejected as they were not supported by required data certified by a Chartered Accountant along with books of accounts and other materials as requested to be submitted as per Islamic Academy. Therefore, the Committee decided to rationalize the fee on a _____________ Page 102 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 uniform and reasonable basis for all Colleges. The Committee took note of the observation in Islamic Academy that better working conditions will attract better teachers, better amenities will ensure better students to seek admission to the Institution and providing good amenities and competent teaching faculty and other infrastructure costs money. The Committee also took into consideration that the Colleges run several courses and there are several batches of students, they have common staff and other infrastructural facilities and the fee collected for the Government Quota seats varies between Rs.2.99 lakhs to Rs.3.5 lakhs and thus having regard to the attendant circumstances and taking into consideration the views expressed by the members of the Committee and the representative of the Institutions, the Committee fixed the fee at Rs.16 lakhs for Management Quota seats and Rs.20 lakhs for NRI Quota seats in all the three Colleges for the academic years 2017-18, 2018-19 and 2016-2020. With regard to the students who have been admitted for the academic year 2017-18, on payment of tentative fee of Rs.12 lakhs plus Rs.50,000/- towards development charges, they were directed to pay the difference in the amount _____________ Page 103 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 at the rate of Rs.50,000/- per semester commencing from the third semester, so that it should not be a burden for the students.
65.In the considered view of this Court, the Committee while fixing the fee vide their proceedings dated 19.06.2018 cannot be stated to have acted assuming such powers and performing functions which were never given or intended to be given to them. Admittedly, when the Committee fixed the fee by proceedings dated 23.03.2017 the infrastructural facilities were thoroughly examined and the same has been brought on record. The Government Order fixing the fee dated 19.05.2017 continued to hold the field and only in June 2017, the Government addressed the Committee to regulate the fee for the Management Quota and NRI Quota seats.
66.As pointed out earlier, a reasonable approach taking note of the realities the then Committee fixed the tentative fees. The petitioners/students were fully aware that the fee which is collected from them at Rs.12 lakhs for Management Quota seats is only tentative and they _____________ Page 104 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 have also given a letter of undertaking to the said effect. During the final fixation, the stand taken by the Management were rejected by the Committee. The Committee noted that only one of the three Colleges had furnished the details with regard to cost of education per student. Therefore, the Committee had to rationally approach the matter and accordingly, the projections and provisional statements were re-worked with disallowance of expenditure on percentage basis for arriving the cost per student.
67.In our considered view, this exercise cannot be stated to be irrational or unreasonable. The Committee rightly took note of the observations made in Islamic Academy that providing better facilities involves cost and better facilities in terms of infrastructure and faculty will attract better students. What would be the consequence of this. Naturally it will produce better Doctors to serve this Country. Therefore, while testing the correctness of the Government Order in G.O.Ms.No.24, what is required to be examined is whether there is any manifest arbitrariness or total non- _____________ Page 105 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 application of mind on the part of the authority while arriving at the decision. The scope of judicial review under Article 226 of the Constitution of India is largely on the decision making process than the decision itself. It may not be justifiable for this Court to decide whether the fees for the Management Quota seats should have been fixed at Rs.16 lakhs or Rs.14.5 lakhs or Rs.17.5 lakhs. Precisely for such reason when the Committee was constituted by the Hon'ble Supreme Court, the technical person of the Committee was to be a Chartered Accountant of repute. This was because the financials of the Institution needs to be analysed and it is a technical task that could be performed only by a qualified Chartered Accountant. The Hon'ble Supreme Court added a further rider by observing that the Chartered Accountant so nominated to the Committee should be a reputable person. There is no allegation against the Committee of any incompetence or bias either individually or collectively and therefore, we have to necessarily hold that the Chartered Accountant who was nominated to the Committee would satisfy the qualification as desired by the Hon'ble Supreme Court.
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68.That apart, the Committee has maintained a fine balance between the Institution and the students and rightly observed that one cannot exist without the other. During the course of argument on behalf of the Association, there is no allegation that the Colleges have been collecting capitation fee and if that was the allegation, the matter would have been different. Thus, for the above reasons, we are of the clear view that there is nothing irrational or unreasonable in the manner in which the Committee proceeded to fix the final fee in G.O.Ms.No.24 and the challenge to the tentative fee both by the Institution as well as the students has to necessarily fail as the tentative fixation was as a result of the Institutions unable to produce material and data for the Committee to examine coupled with the fact that admissions had to be completed by 30th of September and before the commencement of the admission process, the fees structure had to be determined as that was the first year where the fee for the Management Quota and NRI Quota seats were to be regulated. The challenge to the tentative fixation by and on behalf of the students also has to fail as they have accepted the tentative fixation and joined the course and a letter of _____________ Page 107 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 undertaking was also executed by them fully knowing well that they may be called upon to pay further fee when the final fixation takes place. In the exercise of its jurisdiction, the procedure adopted by the Committee is found to be reasonable and fair and decision taken with due regard for realities. Therefore, the proceedings of the Fee Committee fixing the tentative fees dated 12.07.2017 and the consequential Government Order dated 19.07.2017 and the final fee fixation by the proceedings of the Committee dated 19.06.2018 which was notified by the Government in G.O.Ms.No.24 dated 03.07.2018 are held to be valid in law and the challenge to the same fails.
69.The consequential prayer sought for by the Association/students is to fix the fee in terms of the proceedings of the Committee dated 23.03.2017 as notified by the Government in the order dated 19.05.2017. In the preceding paragraphs, we have held that the Committee in its order dated 23.03.2017 had no occasion to fix the fee for the Management Quota seats as the fixation was only restricted to the Government Quota seats. _____________ Page 108 of 112 https://www.mhc.tn.gov.in/judis/ W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 Consequently, the contention of the Association/students that the Government Order dated 19.05.2017 should be made applicable to them is not tenable. In the present writ petitions, the argument before us is that there is no mention in the fee fixation proceedings dated 23.03.2017 that it is only for Government Quota seats and therefore, it should be taken it applies for all seats irrespective of quota. This argument was rejected by noting the factual position that for the first time the fees structure for the Management Quota seats were fixed [tentatively] by order dated 12.07.2017 and in such circumstances, we cannot infer that the fee fixed by the proceedings dated 23.03.2017 is for the Government Quota as well as the Management Quota seats. Such inference is impermissible as it is factually otherwise.
In the result, all writ petitions fail and they are dismissed. No costs.
(T.S.S., J.) (S.S.K., J.)
20.09.2021
Index: Yes/ No
Speaking Order : Yes/ No
abr/cse
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W.P.Nos.18984, 19135, 19136, 19137 of 2017,
24161 of 2018 and 19466 of 2020
To
1.The Secretary to Government (Health),
Department of Health,
Government of Puducherry,
Chief Secretariat (Health) – 605 001.
2.The Secretary, Medical Council of India,
Pocket-14, Sector 8, Dwaraka, New Delhi – 110 077.
3.The Secretary, Ministry of Health & Family Welfare, New Delhi.
4.The Under Secretary to Government (Health), Department of Heath, Government of Puducherry, Chief Secretariat (Health) – 605 001.
5.The Chairman, Fee Committee Puducherry, Unaided Self Financing Medical, Dental Colleges, No.AA-67, 1st Street, Near Rountana Nalli Silk House, Anna Nagar, Chennai-40.
6.The Secretary to Government, The Union Territory of Puducherry, Health Department, Office of the Chief Secretariat, Puducherry-605 001.
7.The Secretary, The Fee Committee, In respect of Self-Financing Medical, Dental and Nursing Colleges, Puducherry.
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8.The Chief Secretary to Govt. of Puducherry, Secretariat, Goubert Avenue, Puducherry-605 001.
9.The Deputy Secretary to Government of Puducherry, Health and Family Welfare Services Department, Secretariat, Beach Road, White Town, Puducherry-605 001.
10.The Director, Department of Health and Family Welfare Services (DHFWS), Victor Samuel Street, Puducherry-605 001.
11.The Chairman, Puducherry Fee Committee, No.7 (NCB), Greenways Road, Chennai-600 028.
12.The Registrar, Pondicherry University, R.V.Nagar, Kalapet, Puducherry-605 014.
13.The Chairperson, National Medical Commission, Pocket-14, Sector-8, Dwarka Phase-I, New Delhi-110 077.
14.The Chairman, Pondicherry Institute of Medical Sciences, Kalathumettupathai, Ganapathichettikulam, Village No.20, Kalapet, Puducherry-605 104.
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and Sathi Kumar Sukumara Kurup, J.
abr/cse Pre-delivery Common Order made in W.P.Nos.18984, 19135, 19136, 19137 of 2017, 24161 of 2018 and 19466 of 2020 20.09.2021 _____________ Page 112 of 112 https://www.mhc.tn.gov.in/judis/